Kerala Education Rules | Right To Preferential Appointment Expires Once Claimant Is Appointed In Any Future Vacancies: HC Full Bench Differs From Precedent

The Kerala High Court has ruled that the right to preferential appointment obtained by a claimant under Rule 51A of Chapter XIV-A of the Kerala Education Rules (KER) does not continue to be available to them once this right has been effectuated through an appointment in future vacancies that arise in any category of teaching posts under the same educational agency.A Full Bench of Justice A.K Jayasanaran Nambiar, Justice Raja Vijayaraghavan V and Justice Mohammed Nias C.P thereby differed with the position in Sandhya T.N v. Jalaja Kumari & Ors [2008 (3) KLT 655] while adjudicating upon a reference made by the Division Bench doubting the correctness of the proposition of law laid down in the impugned decision."The right to preferential appointment obtained by a Rule 51A claimant does not continue to enure in that person once the said right has been effectuated through an appointment in future vacancies that arise in the same, lower or higher category of teaching posts in schools under the same educational agency. The decision to the contrary in Sandhya T.N (supra) has to be seen as rendered based on the peculiar factual circumstances that obtained in Elizabeth Oommen (supra) that it followed and cannot be seen as a general proposition of law governing the issue during the period between 17.06.2005 and 05.07.2012."The Division Bench was deciding an inter se claim between holders of rights under Rule 43 and Rule 51A of Chapter XIV-A in the matter of preferential appointment to vacancies arising in teaching posts in the school concerned. The main issue was regarding the continued entitlement of a Rule 51A claimant to the right under the said provision, despite being accommodated to a vacancy in a teaching post in a different category, in effectuation of that right.In the impugned decision, the appellant had worked as HSA (Hindi) and Lower Grade Hindi teacher during various spells in schools under the management of the Travancore Devaswom Board between 1994 and 2005. While she was working as Lower Grade Hindi Teacher in the school with effect from 2003, she was retrenched from the post with effect from 15.07.2005. She thus obtained a right under Rule 51A for preferential appointment to future vacancies in the same, lower or higher categories of teaching posts in the school for which she was qualified. In this case, the first respondent had similarly worked as HSA (Hindi) and Lower Grade Hindi teacher under the Board between 1992 and 2011. She was working as an HSA when she was reverted as Lower Grade Hindi teacher with effect from 15.07.2003 in accordance with the 2nd proviso to Rule 43 of Chapter XIV-A. Hence she was never retrenched from the school to claim any right under Rule 51A and she continued in the said post till 31.05.2011.When a vacancy arose in the post of HSA (Hindi) on 01.06.2011, the manager promoted the first respondent recognizing her claim under Rule 43, ignoring the appellant's Rule 51A claim which was superior as per the statutory provisions then in vogue. In a revision petition filed by the appellant, the Government ruled in her favour and directed her appointment to the post. The first respondent challenged this order before a Single Judge contending that she was both a Rule 43 claimant as well as a Rule 51A claimant. This petition was disposed of directing the Government to look into the rival claims, but the Government held that the first respondent was only a Rule 43 claimant and her claim had to yield to the superior right of the appellant under Rule 51A. The Single Judge however found that the first respondent was entitled to the vacancy of HSA (Hindi) as she continued to be a Rule 51A claimant notwithstanding her appointment as Lower Grade Hindi Teacher and considering her seniority over the appellant. The Single Judge relied on the impugned decision in Sandhya T.N (supra) while holding soThe appellant thereby moved a Division Bench challenging the same, and it was at this juncture that the Bench doubted the correctness of the view in Sandhya T.N (supra) that a Rule 51A claimant continued to hold the right under that provision notwithstanding the accommodation to a vacancy in a teaching post in a different category in effectuation of that right. The Full Bench noted that Rules 43 and 51A clearly stipulate that during the said period, the right under Rule 43 was subject to the right obtained under Rule 51A and that, in the event of an inter se claim between the different right holders, the holder of the right under Rule 43 had to yield to the superior right held by the other under Rule 51A. However, the question here was whether the first respondent continued to hold a right under Rule 51A where consequent to her being found surplus in the post of HSA (Hindi) on 15.07.2003, she was not retrenched from the school, but reverted and retained therein as Lower Grade Hindi Teacher with effect from 15.07.2003 and in which post she continued till...

Kerala Education Rules | Right To Preferential Appointment Expires Once Claimant Is Appointed In Any Future Vacancies: HC Full Bench Differs From Precedent

Hannah M Varghese

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